Case Note & Summary
The case involved cross-writ petitions arising out of a dispute between a vocational course teacher and the management of an educational institution regarding termination of service. The teacher, appointed in 1989 for a Minimum Competency Vocational Course (M.C.V.C.) in Electronic Technology, was alleged to have been terminated without proper procedure when student enrollment fell below the minimum required. The management claimed that the closure of the course due to de-recognition necessitated termination under Rule 25-A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Two notices were issued: one on 7.12.2002, which was a show cause notice attributing lack of performance, and another on 13.1.2003, threatening to stop salary unless the employee executed an undertaking waiving all service benefits. The employee challenged the termination before the School Tribunal, which, in Appeal No.348/2004, by order dated 25.11.2004, set aside the termination and granted reinstatement with continuity and full back wages. The management filed Writ Petition No.581 of 2005 to challenge this order. Meanwhile, the management retrenched the employee again on 7.8.2006, which led to the employee filing Writ Petition No.6739 of 2006. During pendency, the employee was reinstated in another institute and eventually took voluntary retirement. The High Court took up both petitions together. The primary legal issues were whether the management complied with Rule 25-A, whether the employee’s non-engagement constituted removal, and whether back wages were payable. The management argued that the notices were in compliance with Rule 25-A and that back wages should not be granted as the employee did not work. The employee contended that the notices were not valid under Rule 25-A, and that the refusal to let her work and pay salary amounted to removal, entitling her to reinstatement and back wages. The Court analyzed Rule 25-A, noting that it requires a three-month advance intimation that services will automatically stand terminated upon closure. The notice dated 7.12.2002 was a show cause notice, not an advance intimation of termination. The notice dated 13.1.2003 was coercive and not a proper notice under the rule. The management’s attempt to seek permission for retrenchment under Rule 26(2) without any response from the authorities failed, as there is no deemed sanction provision. The Court further held that under Section 9(1)(a) of the M.E.P.S. Act, 1977, refusing attendance and stopping salary constituted removal, giving jurisdiction to the Tribunal, despite the management’s claim that no order of termination was passed. Regarding back wages, the Court relied on the principle in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya, holding that an illegally terminated employee is entitled to full back wages upon reinstatement, unless the employer proves gainful employment. The management’s argument that the employee had not worked was rejected. Consequently, the Court dismissed the management’s writ petition (WP 581/2005) and upheld the School Tribunal’s order. The employee’s writ petition (WP 6739/2006) was disposed of as not pressed due to subsequent developments. Thus, the employee was entitled to continuity of service and full back wages as originally ordered.
Headnote
A) Service Law - Termination on Account of Abolition of Post - Rule 25-A of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Requirement of three-month advance intimation for automatic termination upon closure of school - Management issued two notices: one dated 7.12.2002, which was a show cause notice alleging poor performance, and another dated 13.1.2003, which threatened to stop salary unless the employee gave an undertaking to forego service benefits - Held that neither notice complied with Rule 25-A; the first was disciplinary, not a closure notice, and the second was coercive and not an advance intimation of termination (Paras 12-18). B) Service Law - Deemed Sanction for Retrenchment - Rule 26(2) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Management sought permission to retrench from Deputy Director but received no reply; unlike Section 5(2) of M.E.P.S. Act, 1977 which provides for deemed permanency, there is no provision for deemed sanction for retrenchment - Held, in the absence of a response, management cannot claim deemed approval, and the attempt to retrench was invalid (Para 19). C) Service Law - Removal from Service - Section 9(1)(a) of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Even without a formal termination order, refusing to allow the employee to mark attendance and not paying salary constitutes 'removal from service', giving a cause of action to approach the Tribunal - Management's stand that no termination order was issued was held to be a device to avoid legal scrutiny, but the appeal was maintainable (Para 20). D) Service Law - Back Wages on Reinstatement - Principle in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya - Employee entitled to full back wages upon reinstatement when termination is found illegal and not due to employee's fault - Management argued that employee did not work and there were no students, but the Court, following Deepali, held that back wages are the normal rule; the employee having been illegally terminated and then reinstated, back wages could not be denied merely because she had not worked during the period (Para 22).
Issue of Consideration
Whether the management complied with Rule 25-A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 before terminating the employee's services on the ground of closure of the course/institution
Final Decision
The High Court dismissed the management's writ petition (WP 581/2005) and upheld the School Tribunal's order of reinstatement with continuity and full back wages. The employee's writ petition (WP 6739/2006) was disposed of as not pressed, as she had voluntarily retired and did not pursue the challenge to her retrenchment.
Law Points
- Rule 25-A termination notice requirements
- deemed sanction for retrenchment not applicable
- removal from service without formal order
- full back wages upon illegal termination
- Deepali Gundu Surwase principle
